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What Prerogatjve Affects. The prerogatives of the crown, as herein considered, respect either the nation's intercourse with foreign nations, or its own domestic government and civil policy. PREROGATIVE IN FOREIGN AFFAIRS.
Binding Effect of King's Act. In foreign affairs, the king is the representative of the people. It is impossible for the individuals of a state to act in unanimity. What therefore is done by the royal authority in regard to foreign powers, is the act of the whole nation. What is done without the king's concurrence, is the act of private men. A subject, committing acts of hostility against a nation in league with England, without the royal assent, is guilty of a great offence against the law of nations.
1. Foreign Ambassadors. The king has the sole power of sending ambassadors to foreign states, and receiving ambassadors at home. The rights, powers, duties and privileges of ambassadors are determined by the law of nature and of nations, and not by any municipal constitutions. They represent masters, who owe no subjection to laws, but those of their own country, and hence their actions are not subject to the private law of that state, wherein they are appointed to reside. An ambassador ought to be independent of every power, except that by which he is sent, and is not subject to the municipal laws of the nation, where he exercises his functions. If he grossly offends, he may be sent home, and accused before his master, who is bound to do justice, or be deemed an accomplice of his crimes.
Liability for Crime. There is great dispute among the writers on the law of nations, whether this exemption extends to crimes mala in se, or merely to those mala prohibita. It has been the generally accepted doctrine, that where an ambassador commits an offence against the law of reason and nature, he shall lose the privilege, and not be exempt from punishment in the country where the crime was committed. But now the general theory of this country, as well as the rest of Europe, as set forth by Grotius, is, that the security of ambassadors is of more importance than the punishment of a particular crime. And, therefore, few, if any, examples have happened within a century past, where an ambassador has been punished for any offence, however atrocious in its nature.
Liability in Civil Actions. In regard to civil suits, all
jurists agree, that neither an ambassador or any member of his suit, can be prosecuted for debt or contract in the courts of the kingdom, where he is sent to reside. Coke asserts, that if an ambassador has made a contract, which is good jure gentium, he shall answer for it here. So few cases, however, have arisen, that our law books are silent upon this question before the reign of queen Anne, where a Russian ambassador was arrested in London for a debt of fifty pounds. He gave bail, and at once complained to the queen. The persons concerned in the arrest, seventeen in number, were sent to prison, and subsequently were convicted by a jury, the judge reserving a question of law, how far those facts were criminal, which point of law was never argued. Meanwhile the czar resented the affront greatly, and demanded that the sheriff of London and others should be put to death. A humiliating act of parliament was passed, to prevent such arrests in the future. This act, elegantly engrossed, with an ample apology from the queen, was forwarded the czar, who thereupon agreed that the offenders be discharged. This statute declared, that all process, whereby the person of an ambassador or of his servant may be arrested, or his goods detained, or seized, shall be null and void, and the parties prosecuting or executing such process shall be deemed violators of the law of nations, and shall suffer penalties and corporal punishment, as the chancellor shall deem fit. This now is the law of the land, and is enforced in the courts of common law.
2. Treaties with Foreign States. It is also the king's prerogative to make treaties, leagues and alliances with foreign states and princes. By the law of nations, it is essential, that a league be made by the sovereign power, and then it is binding on the entire community. In England that power is vested in the person of the king. Whatever contracts he engages in, no other power in the kingdom can ‘legally delay, resist or annul. The king's ministers, however, may be impeached, who from criminal motives, advise the framing of a treaty, injurious to the interests of the country.
3. Making War or Peace. The king has the sole prerogative in this matter. The right of making war is vested in the sovereign, individuals having yielded their private rights in this respect on entering into society. Unauthorized volunteers in violence are not ranked among open enemies, but are treated like pirates and robbers. A denunciation of war ought always to precede active hostilities, which shows that such war is not undertaken by private persons, but by the will of the whole community. In England, it must be publicly declared by the king's authority. The same authority must be proclaimed to end the war. The power of parliamentary impeachment of ministers of the king advising an improper or inglorious war, exists also in this case.
4. Letters of Marque and Reprisal. Sometimes the delay in making war may be detrimental to individuals, who have suffered by foreign depredations. Our law has in some respects armed the subject with powers to impel the prerogative, by directing the ministers of the crown to grant letters of marque and reprisal upon due demand. This produces an incomplete state of hostilities, which generally ends in a formal declaration of war. These letters are grantable by the law of nations, whenever the subjects of one state are injured by those of another, and justice is denied by that state, to which the oppressor belongs. The words marque and reprisal are used as synonomous, and signify, the latter, a taking in return, the former, the passing the frontiers in order to such taking. The letters order the seizing of the bodies or goods of the subjects of the offending state, wherever found, until satisfaction be made. This custom of reprisals seems dictated by nature itself, and we find very ancient instances of it. The sovereign power must determine when reprisals shall be made, else every private sufferer would be a judge in his own cause. This form must be observed: The sufferer must first apply to the lord privy seal, and he shall make out letters of request. If, after such request of satisfaction be made, the party required do not promptly make restitution, the chancellor shall make out letters of marque, under the great seal, by virtue of which he may attack and seize the property of the aggressor nation, without being deemed a robber or pirate.
5. Granting Safe-conducts. Without these, by the law of nations, no member of one society has a right to intrude into another. Each nation may adopt such measures, as it sees fit, as to the admission of strangers, excepting those who are driven on the coast by necessity, or by any cause, that deserves compassion. Great tenderness is shown by our laws to foreigners in distress, and also to the admission of strangers. As long as their nation is at peace with ours, and they themselves behave peaceably. they are under the king's protection, though liable to be sent home at any time. But no subject of a nation at war with us, can, by the law of nations, come into the realm, or travel on the high seas, or send his goods from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct, granted under the king's seal, and enrolled in chancery. But passports, under the king's manual, or licenses from his ambassadors abroad, are now more usually obtained, and are of equal validity.
Foreign Merchants. The law of England, as a commercial country, pays special regard to foreign merchants. Magna carta provides, that they shall have safe-conducts to travel through England, without being subjected to unreasonable imposts, except in time of war. If hostilities break out, foreign merchants in England may be attached in person or in goods, but shall not be harassed, until it be learned how our merchants are treated in such country, and if our merchants are secure in that land, their merchants shall be secure in ours.
This was the common rule of equity among all the northern nations, and Montesquieu says of this clause in magna carta, that “the English have made the protection of foreign merchants one of the articles of their national liberty. They know better than any people on earth to value religion, liberty and commerce.”
Commerce Despised by Romans and Canonists. The Romans treated commerce as a dishonorable employment, and prohibited its exercise by persons of birth, rank and fortune, while the canonists looked on trade as inconsistent with Christianity, and decided at the council of Melfi, A. D. 1090, that it was impossible with a safe conscence to exercise any traffic, or follow the profession of the law. PREROGATIVE IN DOMESTIC AFFAIRS.
1. His Legislative Power. The king is a constituent part of the supreme legislative power, and as such has the prerogative of rejecting such provisions in parliament, as he judges improper to be passed. The king is not bound by any act of parliament, unless he be specially named. The most general words that can be devised, affect him not in the least, if they tend to restrain any of his rights or interests. It would be dangerous to the state, if the strength of the executive power were liable to be curtailed, without its own express consent, by constructions and implications of the subject. Yet where an act is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding, as well upon the king as the subject, and likewise the king may take the benefit of any particular act, though he be not named.
2. His Military Command. The king is the generalissimo, or the first in military command within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community, and the principal use of government is to direct that united strength in the most effectual manner to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose. In a monarchy, the military power must be trusted in the hands of the prince.
His Military Power. As general of the kingdom, the king has the sole power of raising and regulating fleets and armies. His prerogative of enlisting and governing them was disputed in the long parliament of Charles I, but was solemnly declared by statute to be in the king alone. This power was also extended to forts and castles. No subject can build a castle or house of strength without the king's consent.
Ports and Havens. To secure his marine revenue, the king has the prerogative of appointing ports and havens, for persons and merchandise to pass in and out the realm, as he in his wisdom sees proper. By the feudal law, all navigable rivers and havens were computed among the regalia, and were subject to the sovereign of the state. The king, therefore, had the power of granting the franchise of havens and ports, yet he could not narrow and confine their limits, when once established, but any one had the right to load or discharge his merchandise in any part of the haven, whereby the retenue of the customs was much diminished by fraudulent landings. Hence was passed in Elizabeth's reign a statute, which enabled the crown by commission to ascertain the limits of all ports, and to assign proper wharfs and quays in each port for the exclusive landing and loading of merchandise.
Light Houses. The erection of beacon and light houses is also a branch of the royal prerogative, whereof the first were